Osceola Land Co. v. Chicago Mill & Lumber Co.

• Decision Date: 13 May 1907
• Citation: 103 S.W. 609,84 Ark. 1
• Parties: OSCEOLA LAND COMPANY v. CHICAGO MILL & LUMBER COMPANY
• Court: Arkansas Supreme Court

103 S.W. 609

84 Ark. 1

OSCEOLA LAND COMPANY v. CHICAGO MILL & LUMBER COMPANY

Supreme Court of Arkansas

May 13, 1907

Appeal from Mississippi Chancery Court; E. D. Robertson, Chancellor reversed.

STATEMENT BY THE COURT.

In February, 1855, Jeptha Fowlkes and wife conveyed by warranty deed section 14, township 15 north, range 8 east, in Mississippi County, Arkansas, to Ashley B. Rozell. At the time of this conveyance the land belonged to the State. Afterwards in 1856 Fowlkes entered the land and paid the consideration therefor and received a certificate of entry from the State. The evidence does not show what became of this original certificate, but Fowlkes died, and in 1870 his wife, who was the executrix of his estate, filed an affidavit that the certificate was lost, and the Commissioner of State Lands of this State issued a duplicate certificate, which was delivered to her.

In 1873 Mrs. Fowlkes and the heirs of Jeptha Fowlkes sold and conveyed the land to the Memphis & St. Louis Railroad Company.

In May 1883, the railroad company sold and conveyed the land to W H. Chatfield, and in September of the same year the widow and heirs of Jeptha Fowlkes transferred the duplicate certificate of entry to Chatfield, and Chatfield obtained on this certificate a patent from the State conveying the land to him.

Chatfield died, leaving, as his heirs, A. H. Chatfield and May Chatfield Gilbert. Mrs. Gilbert in 1890 sold and conveyed her interest in the land to her brother, A. H. Chatfield.

In 1892 the land was sold for non-payment of taxes, and purchased by R. O. Culbertson, to whom a tax deed was executed in 1894.

In 1806 R. O. Culbertson sold and conveyed the land to one Boynton. Boynton brought an action in the Mississippi Chancery Court against L. D. Rozell and other heirs of A. B. Rozell to confirm the tax title under which he held and to confirm his title to the land. On the hearing the plaintiffs and defendants appeared by attorneys, and the court rendered a decree confirming the tax sale and quieting the title of the plaintiff as against the defendants. Boynton died, and his widow and heirs in 1902 conveyed the land to the Chicago Mill & Lumber Company.

A. B Chatfield, who also claimed the land, was not a party to the action in which the confirmation decree above referred to was rendered. He sold and conveyed the land in 1904 to the Osceola Land Company, and this Company brought an action against the Chicago Mill & Lumber Company to cancel the tax title under which the Chicago Mill & Lumber Company claimed the land and to quiet the title of the plaintiff to the land.

The Chicago Mill & Lumber Company appeared and answered. On the hearing there was a decree in favor of the defendant quieting its title to the land and dismissing the complaint of the Osceola Land Company for want of equity.

The defendant appealed.

Judgment reversed and cause remanded.

Chas. T. Coleman and J. T. Coston, for appellant.

1. The proposition that the title of the Rozell heirs passed from them to Boynton by virtue of the decree against them in the case of Boynton v. Rozell's heirs is true as to the parties to that suit, but not as to third parties. The decree does not purport to establish title in the Rozells and pass it to Boynton. A decree can do no more than it purports to do. 88 S.W. 567. Judgments and decrees are binding between parties and privies only, and a stranger cannot rely upon such judgment or decree as an estoppel, nor be estopped thereby. 84 Am. Dec. 485; 50 Am. Dec. 691; 29 Ala. 236; 22 Ala. 821; 52 Ark. 173; 4 Hun, 164; 27 Ore. 181; 40 Minn. 283.

If Chatfield had been made a party to that suit, he could have introduced the record of the tax sale which shows on its face that the sale was void. He was deprived of opportunity to be heard, to cross-examine witnesses, or to introduce evidence. 15 Grat. 204.

2. Appellee acquires no title by reason of payment of taxes for seven years consecutively, the first payment having been made January 6, 1898, and this suit commenced August 4, 1904. Seven full years must have elapsed after first payment before title is perfected. Compare Arkansas and Illinois statutes on this subject. Kirby's Digest, § 5057; 1 Wall. 638; 42 Ark. 93; 12 Ia. 186; 22 N.W. 844; 46 Ill. 521; 45 Ill. 391; 77 Ill. 269; 87 Ill. 259; 46 N.E. 748; 1 Wall. 643.

3. The record of Rozell's deed from Fowlkes was no notice. 89 S.W. 470. If the Memphis & St. Louis Railroad Company bought without notice, appellant stands in its position and succeeds to all its equities, and the burden is on appellee to show that the railroad company had notice of the deed from Fowlkes to Rozell. 35 Ark. 102; 31 Ark. 88; 113 F. 390; 82 F. 386; 102 Ill. 340; 31 Am. Rep. 723; 25 S.W. 829; 66 Me. 539. If the burden were on appellant to show that the railroad company was a bona fide purchaser for value without notice, that burden was discharged by the introduction of the deed from the Fowlkes heirs reciting a consideration of two dollars per acre and acknowledging receipt thereof. 66 Miss. 636; 11 So. 688; 12 A. 908. See also on the contention that appellant succeeds to the rights and equities of the railroad company, 2 Pomeroy, § 754, p. 1345; 49 Ark. 216; 25 S.W. 829; 73 Hun, 552; 82 N.Y. 477; 67 Am. Dee. 70.

3. The presumption is that the Chatfield patent was issued to the party entitled to it. 39 Am. Dec. 678; 2 Head, 697; 120 U.S. 548; 88 S.W. 566. Defendant is barred by laches, 12 Peters, 255; 12 Cranch, 513; 58 F. 990; 18 Wall. 508; 120 F. 830.

W. J. Driver and W. J. Lamb, for appellee.

1. The decree, taken in connection with the tax sale, even though void as alleged, constitutes a link in appellee's claim of title, and has the same force and effect as a conveyance by the heirs of Rozell. Kirby's Digest, §§ 6521, 7104; 4 Wheat. 213; 106 Ga. 33; 31 S.E. 787. It was admissible in evidence to supply a link in the chain of title, though appellant's predecessor was not a party to the suit. 29 N.E. 896; 141 Ill. 215; 30 N.E. 320; 8 Ga. 354; 6 Har. & J. 182; 145 N.Y. 607; 2 Black on Judg. (2nd Ed.), § 607.

2. Chatfield had knowledge of facts sufficient to excite inquiry, regardless of the record of the deed, by virtue of the frequent conveyances by the Fowlkes heirs, and the record of the deed was in itself constructive notice. 21 Am. & Eng. Enc. of L., 584; 101 U.S. 141; 15 Pet. 93; 101 U.S. 260; 50 Ark. 327. It is a general rule that if a purchaser has not obtained the legal title before notice of the prior equity, even though by contract and patent without notice he has acquired an equitable title, he can not, after notice, acquire the legal title and thereby defeat or postpone the prior equity unless his own equity is of superior merit, but, in order to produce such a result, he must acquire not only the equitable, but also the legal, title, without notice. 23 Am. & Eng. Enc. of L., 519 and cases cited; 17 S.D. 637; 98 N.W. 166; 106 Am. St. Rep. 791. If Fowlkes had any interest at all, he was not only entitled to convey that interest, but whatever interest he afterwards acquired would also pass. Kirby's Digest, §§ 731, 734; 4 Ark. 285; 15 Ark. 313; 16 Ark. 340. These statutes were in force prior to the entry by Rozell, while the act authorizing the assignment of the certificate of purchase, Ib. § 4749, was not passed until after the date of the conveyance from Fowlkes to Rozell. Hence an assignment of the original certificate to him would have been void; but, if it had been assigned, the assignee would have taken subject to any rights which had been conveyed to other persons under the law previously in force. 15 Pet. 93; 54 Ark. 148; 101 U.S. 260. If a patent is issued to one person when another has acquired the ownership of the land by purchase or otherwise, the person to whom the patent is issued becomes the trustee for the person entitled. 26 Am. & Eng. Enc. of L., 279. and note 9; Id. 397, note 7; Id. 399, note 1; 75 Ark. 415. See also 16 Ark. 440; 20 How. (U. S.), 6. In this case the ex parte affidavit of Mrs. Fowlkes and the imperfect assignment and acknowledgment of the certificate constituted an imposition upon the State Land Commissioner, and Chatfield should be held to be the trustee for the Rozell title. 2 Black. 554; 128 U.S. 456; 1 Black; 132; 2 How. 284; 17 Ark. 701; 80 Ark. 391. Until the act of February 16, 1893, an attorney in fact could not convey the interest of a married woman. 39 Ark. 120. A patent issued by a ministerial officer is only prima facie evidence of title, and, such being the case, the certificate and assignment can both be inquired into. 27 Ark. 125; 40 Ark. 328; 39 Am. Dec. 512; 80 Am. Dec. 410.

3. The seven payments of taxes by appellee perfected its title. The words of the statute, "shall have paid taxes for at least seven years in succession," mean seven annual payments of taxes, and time is not the criterion. Compare §§ 5057 and 665, Kirby's Digest; 68 Ark. 211; 74 Ark. 302.

4. As to the equities in the case, the patent to Chatfield had never been recorded, there is nothing in the record to show that Rozell or his heirs had any knowledge of the issuance of a patent to Chatfield, or that he claimed any interest in the land, which was wild and unimproved, and which the testimony shows he abandoned about 1896. Those claiming under the Rozell title have paid the taxes about sixteen years, while the Chatfield interest has paid them one year. Chatfield never recorded his patent until after this suit was institued. The property rapidly enhanced in value--2,000 per cent. in seven or eight years. Appellee and those under whom it claims asserted title affirmatively and defensively before appellant purchased. 18 Am. & Eng. Enc. Law, 102; 57 Am. St. Rep. 911; 91 U.S. 593; 96 U.S, 618.

J. T Coston and...